






















To his Excellency Eli II. Murray, 

Governor of the Territorij of Xltah, 

Sir: In reply to the coinnuiiiication of Allen G. Camp¬ 
bell, Esq., in which he protests against the issue of a certiti- 
cate ot election to me as delegate of the Territory of Utah 
in the Forty-seventh Congress of the United States, and 
demands the issue of the certificate to himself, 1 respect¬ 
fully submit the following statement: 

The grounds on which Mr. Campbell bases his protest 
and demand are : 

(1) That as canvassing officers the Governor and Secre¬ 
tary have power to ‘‘go behind the returns,” and ascertain 
from extrinsic evidence the number of votes legall}' cast for 
each candidate. 

(2) That there is no evidence tending to disprove his 
qualifications for the office of delegate in Congress. 

(3) That there is no evidence tending to disprove the 
qualifications of the 1,357 electors who voted for him. 

(4) That I am an unnaturalized alien. 

(5) That, being such, I am not eligible to the office of 
delegate in Congress, and that my ineligibility resulting 
from alienage is aggravated by polygamy, which he thinks 
is incompatible with citizenship and inconsistent with an 
honest oath of allegiance to the Constitution of the United 
States. 

(6) That all of the 18,568 votes cast for me at the late 
election are therefore void and are to be excluded from the 
canvass. 

(7) That as a consequence the certificate of election is to 
be delivered by the canvassers to him, and not to me. 

(8) That the females in the Territory who claimed the 
right to vote outnumbered all the votes polled at the late 
election. 


2 


(9) That it ‘‘ must be taken for granted ” that all votes 
east by females were cast for me. 

(10) That the territorial legislation which extends the 
riofht of sutfrasre to females is void. 

(11) That it is therefore impossible to determine, with¬ 
out proof, that tlie 18,568 votes cast for me included more 
legal votes than the 1,357 votes cast for him. 

(12) That the votes of the females have ‘‘vitiated the 
election.” 

With your excellency’s permission I will answer these 
several propositions in their order. 

1. The process of reasoning by which Mr. Campbell 
reaches the conclusion that the Governor and Secretary, 
as canvassing officers, have })Ower to “go behind tlie re¬ 
turns,” and to ascertain from extrinsic proofs the number 
of votes cast for each candidate is tirst to be considered. He 
refers to the following provisions of the “ Compiled Laws 
of Utah”: 

(23) “Immediately upon receiving the electoral returns 
of any precinct, the county clerk and pi’obate judge, or, 
in his absence, one of the selectmen, shall unseal the 
list and ballot-box, and count and compare the votes with 
the names on the list, and make a brief abstract of the 
offices and names voted for, and the number of votes each 
person received; the l)allot-box shall then be returned and 
the votes and list preserved for reference in case the elec¬ 
tion of any person shall be contested. 

(24) When all the returns and abstracts are made the 
clerk shall forthwith make a general abstract and post it 
up in his office, and forward to the Secretary of the Terri¬ 
tory a certified copy of the names of the persons voted for, 
aiid the number of votes each has received for territorial 
offices, and furnish each person having the highest number 
of votes for county and precinct offices a certificate of his 
election. 

(25) So soon as all the returns are received, the Sec¬ 
retary, in the presence of the Governor, shall unseal and 
examine them, and furnish to each person having the high¬ 
est number of votes for any tei'ritorial office a certificate 
of election.” 


He thinks that ])ecanse these statutory provisions do not, 
in express terms, require the canvassers to give the certifi¬ 
cate to tlie person shown by the returns to have the highest 
number of legal votes, they by implication do require them 
to give it to the person who, whatever the returns may 
show, did in fact receive the highest number of legal 
votes; that this duty necessarily implies the povrer to em¬ 
ploy suitable means to ascertain who received the highest 
number of legal votes; and that, therefore, the Governor 
and Secretary, as canvassers, have the right to resort to 
extraneous evidence to ascertain the real facts in this case. 
He seeks to fortify his conclusion by the following citation 
from page 52 of Cushing’s Law and Practice of Legisla¬ 
tive Assemblies”: 

‘‘There can be no doubt that in those branches wherein 
tlie law has marked out a definite line it is ministerial; but 
as regards the two material branches of deciding upon the 
capacity or incapacity of candidates, or upon the qualifica¬ 
tions or disqualifications of electors, the sulqect requires 
some investigation ; but if the returning officer be fully 
apprised of some notorious disqualification, whether of a 
candidate or of an elector, such as their being minors or 
claiming in the right of property, which clearly does not 
eiititle tliem to the privilege, he is so far a judicial officer 
as to prevent their voting or being returned. In judicial 
decisions of this country, when the point is adverted to, it 
seems to be considered that the functions of returning offi¬ 
cers are chiefly judicial in their character.” 

I respectfull}" submit that each and every step in this 
reasoning is erroneous, and that the conclusion reached is 
absolutely destitute of warrant in law. The provisions of 
sections 23, 24, and 25 of the statutes of Utah confer upon 
the Governor and Secretary, as canvassing officers, no judi¬ 
cial power to “ go behind the returns ” for the purpose of 
ascertaining the number of votes cast for any candidate. 
It is made their duty to ascertain whom the returns show 
to have received tlie highest number of votes, and to give 
the certificate to him. The only judicial or judicial 


4 


power vested in them is to determine whether the papers 
before them purporting to be returns are returns made in 
substantial conformity to the law. If they decide that the 
papers are such returns, they must embrace their showing 
in the official canvass. If they decide that they are not 
such returns, they must exclude them from the canvass. 

The precinct judges of elections in this Territory make 
no returns beyond the mere traijsmission to the county 
clerk of the sealed ballot-box and list of electors. They 
are not precinct canvassers. They do not return to the 
county clerks the number of votes cast for each candidate. 
They only return the ballots and the poll-lists. Upon the 
county clerks and probate judges, or selectmen, is imposed 
the duty of canvassing the votes, in the tii’st instance, by 
counting the ballots, and comparing their number with the 
number of names on the poll-lists, and preparing statements 
of the offices and names voted for, and the number of votes 
cast for each candidate. The votes and lists are not sent 
to the Secretary of the Territory, but remain in charge of 
the clerks. The law makes no provision for any inspection 
of the ballots or of the poll-lists by the Governor or Sec¬ 
retary before their canvass is completed and the certiticates 
delivei-ed to the successful candidates. It places nothing 
before the Governor and Secretary except a certified copy 
of the names of the persons voted for and the number of 
votes cast for each. If the law requires them not merely 
to ascertain the number of votes shown by the clerk’s re¬ 
turns to have been received by each candidate, but the 
number of votes shown by the ballots and poll-lists, and 
by extrinsic proof, to have been legally cast for each candi¬ 
date—that is to say, not merely to canvass the clerk’s re¬ 
turns, but to canvass the votes themselves and determine 
their legality—then the law is an outrage, not only on 
the Governor and Secretary, who are compelled to make 
“ bricks without straw,” but on the candidates whose rights 
are to be adjudicated by officei’s from whom the law delib- 


erately withholds the means essential to correct adjudica¬ 
tions. This would be a most scandalous condition of the 
territorial law it it reallv existed. But such is not the law 
of Utah. 

The question now under consideration has been adju¬ 
dicated many times by judicial and legislative tribunals in 
the United States, upon statutory provisions substantially 
like those embraced in sections 23, 24, and 25 of the ‘‘Laws 
ot Utah.” It has never been decided in favor of Mr. 
Campbell. Mr. McCrary, in his Law of Elections (section 
82), correctly states the rule established by the concur¬ 
rent authorit}’ of these decisions to be, that the canvassers 
“ must receive and count the votes as shown by the re¬ 
turns, and they caimot go behiml the returns for any purpose ; 
and this necessarily' implies that when a paper is presented 
as a return, and there is a question as to whether it is a 
return or not, they must decide that question from what 
appears upon the face of the paper itself” 

Under statutory provisions similar to those of Utah, the 
Supreme Court of Missouri held that the powers of the 
canvassers were restricted to the determination of the re¬ 
sult shown by the returns. The following is the provision 
of the Missouri statute: 

“The Secretary of State, in the presence of the Gov¬ 
ernor, shall proceed to open the returns and to cast up the 
votes given for all candidates for any office, and shall give 
to the person having the highest number of votes tor mem¬ 
bers of Congress from each district, certificates ot election 
under his hand with the seal of the State affixed thereto.” 

In State v. Steers, 44 Mo., 224, the court held: 

“Here is no discretion given, no power to pass upon and 
adjudge whether votes are legal or illegal, but the simple 
ministerial duty to cast up and to award the certificate to 
the person having the highest number ot votes.” 

The New York election law of April 17, 1822, provides 
that the inspector appointed for that purpose 

“ Shall, in person, deliver to the said clerk at the office, or 


0 


to his deputy, or to the keeper of the said office, a true copy 
of the said staterneut of votes,” and thereupon the board of 
canvassers ‘‘shall proceed to calculate and ascertain the whole 
number of votes which shall be given at such election in the 
said county for the several persons who shall be voted for 
as Governor, Lieutenant-Governor, Senators, and Kepre- 
sentatives in the Congress of the United States, or so many 
of the said officers as sfiall be voted for, and shall set down 
in writing the names of the sevei*al candidates so voted 
for at any such election for any of the offices aforesaid, 
and the number of votes in words written at full length 
which shall be given for any such candidates at any such 
election in the said county, and shall certify the same to 
be a true copy of the votes giv^eu in said county.” 

In the case of The People v. Van Slyck, 4 Cow., 323, 
which was decided in February, 1825, under the foregoing 
statutory provision, the court said: 

“ The duties of the canvassers are ministerial. They are 
required to attend at the clerk’s olflce and calculate and 
ascertain the whole number of votes given at any election, 
and certify the same to be a true canvass. This is not a 
judicial act, but merely ministerial. They have no power 
to controvert the votes of the electors.” 

It is provided in section 25 of the Revised Statutes of 
Illinois (1856) that the clerk of the County Commissioners’ 
Court, taking to his assistance two justices of the peace 
of his county, 

“Shall proceed to open the returns and make abstracts 
of the votes in the following manner: * * * And it 

shall be the duty of the said clerk of the County Commis- 
sioiiers’ Court immediately to make out a certificate of 
election to each of the persons having the highest number 
of votes.” 

In the case of The People v. Head, 25 Ill., 327, the court 
held: 

“Tliis contest, under our statute, is an original proceed¬ 
ing instituted by the contestant for the purpose of trying 
the legality of the election, and not of the canvass. It goes 
behind tlie canvass and purges the election itself. The 
court, in trying it, is not confined to the poll-books as re¬ 
turned, but it can go behind these and inquire, by proof 


dehors, whether the votes, or any of them, were illegal. 
But tlie canvassers have no right to do this. Tlieirs is a 
mere mechanical or, ratlier, arithmetical duty. They may 
probably judge whether the returns are in due form, but, 
alter that, they can only canvass the votes cast for the 
several candidates and declare the result.” 

Section 95, chapter 6, of the Revised Statutes of Wis¬ 
consin (1849) is in these words: 

“Whenever it shall satisfactorily appear that any person 
has received a plurality of the legal votes cast at any elec¬ 
tion for any office, the canvassers shall give to such person 
a certificate of election, notwithstanding the provisions of 
law may not have been fully complied with in noticing or 
conducting the election, or canvassing the returns of votes, 
so that the real will of the people may not be defeated by 
any informality.” 

Under this statute it was held by the Supreme Court of 
Wisconsin, in Attorney-General v. Barstow, 4 Wis., 775, 
as follows: 

“Whether it would have been competent for the Legis¬ 
lature, under the Constitution which delegates all of the 
judicial power of the State to the courts of the State, to 
give to the board of State canvassers judicial authority to 
settle and adjudicate rights of this nature, it is not neces¬ 
sary to inquire. They have not given them any such 
power. Their duties are strictly ministerial. They are to 
add up and ascertain b\^ calculation the number of votes 
given for any office. They have no discretion to liear and 
take proof as to frauds, even if morally certain that mon¬ 
strous frauds have been perpetrated. The ninety-fifth sec¬ 
tion of this statute gives them no such power.” 

The Revised Statutes of Michigan for 1846 (p. 51) con¬ 
tain the following provision : 

“The said board of canvassers, when formed as afore¬ 
said, shall proceed to examine the statements received by 
the Secretary of State of the votes given in the several 
counties, and make a statement of the whole number of 
votes given for the office of Representative in each con¬ 
gressional district, which shall show the names of the per¬ 
sons to w'horn such votes shall have been given for said 
office, and the whole number of votes given to each. The 


8 


said canvassers shall certify such statement to he correct, 
and sobscril)e tlieir names tliereto, and they shall thereupon 
determine what persons have been, hy the greatest number 
of votes, duly elected to such offices, and make and sub¬ 
scribe on such statement a certificate of such determina¬ 
tion, and deliver the same to the Secretary of State.” 

Under this statutory provision tlie Supreme Court of the 
State, in the case of The People s. Van Cleve, 1 Mich., 336, 
said: 

“In a republican government, where the exercise of 
official power is hut a derivative from the people through 
the medium of the ballot, it would be a monstrous doctrine 
that would subject the public will and the public voice thus 
expressed to be defeated hy eitlier the ignorance or the 
corruption of a hoard of canvassers. The duties of these 
boards are simply ministerial. Their whole duty consists 
in ascertaining who are elected, and in preserving the evi¬ 
dences of such election.” 

It is provided on page 77 of the Kevised Statutes of 
Maine for 1841 as follows: 

“Tlie returns from eacli town and plantation shall be 
delivered into the olfice of the clerk of the county commis¬ 
sioners on o!' before the first day of the meeting of said 
commissioners next after the said month of September, to 
be by them opened and compared with the like returns 
from the several towns and plantations in such county 
or registry district, and the person having a majority of 
the votes shall be declared registrar of deeds for said 
county or registry disti'ict.” 

The Supreme Court of Maine, in Bacon i’. York County 
Commissioners, 26 Me., 498, a case which arose under this 
statute, held: 

“ The canvassers had no power to go beyond the returns 
of the selectmen and town clerks, and receive other evi¬ 
dence, and determine therefrom that the towm-meeting was 
not properly called, and for that cause reject the votes of 
that town.” 

In O’Ferrall v. Colby, 2 Minn., 186, a case decided under 
vsimilar statutory pi-ovisions, the court held : 

“We cannot, therefore, resist the conclusion that the 


9 


duties of the clerk of the board of supervisors in receiving 
and opening election returns, in canvassing and estimating 
tl]e votes, and in giving certificates of election, are purely 
ministerial, and that no judicial or discretionary powers are 
conferred upon him or the board of canvassers, except, 
perhaps, so far as to determine whether the returns are 
spurious or genuine, or polled at established precincts, and 
in ascertaining from the returns themselves for whom the 
votes were intended.” 

The Supreme Court of Indiana, under a similar statute, 
in the case of Brower v. O’Brien, 2 Carter, (Ind.,) 430, held : 

“ With regard to this point, it may be observed that the 
duties of both the board of canvassers and the clerk in 
making the statement are purely ministerial. It is not 
within their province to consider any questions relating to 
the validity of the election held or of the votes received by 
the parties voted for. They are simply to cast up the votes 
given for each person, from the proper election documents, 
and to declare the persons who, upon the face of these 
documents, appear to have received the highest number of 
votes given, duly elected to the offices voted for.” 

The paragraph quoted from Mr. Cushing’s work shows 
upon its face that the returning officer, who is said to be 
“so far a judicial officer as to prevent their votw// or being 
returned,” is a judge of the election as well as a returning 
officer. If Mr. Cushing refers to mere canvassers, his state¬ 
ment, that in the judicial decisions of this country their 
functions are held to be chiefly judicial, is an inexcusable 
blunder. 

2. Mr. Campbell’s next proposition is, that there is no 
evidence tending to impeach his qualifications for the office 
of delegate in Congress. That the returns present no such 
evidence, is probable; and if the returns on their face 
disclose nothing to impeach his qualifications, it is quite 
immaterial to inquire now whether Mr. Campbell is or 
is not eligible to the office which he seeks. The House 
of Representatives is the only tribunal empowered to 
adjudicate that question. If the Governor and Secre¬ 
tary find, from the returns, that he is elected, they must 

9 


10 


award the certiticate to him, whatever proofs outside of 
the returns may or may not be attainable to impeach his 
eligibility before the House of Representatives. Such 
proofs cannot be used in this canvass. 

3. The same answer is to be made to the assertion that 
there is no evidence tending to impeach the qualifications 
of the 1,357 electors who voted for Mr. Campbell. What¬ 
ever evidence may exist on this point outside of the returns, 
it cannot be considered by the Governor or Secretary in 
this proceeding; it can only be considered by the House 
of Representatives of the United States. 

4. Mr. Campbell’s next assertion is, that I am an unnat¬ 
uralized foreigner. This presents a question of fact upon 
which the returns to be canvassed by the Governor and 
Secretary probably furnish no evidence beyond the pre¬ 
sumption, to be drawn from those returns, that the electors 
performed their duty according to law, and, therefore, that 
the candidates for whom they voted have all the legal quali¬ 
fications for office, whatever they may be. If there be any 
proofs attainable tending to overthrow this presumption 
and to show that I am an unnaturalized foreigner, and 
therefore destitute of the necessary qualification of cit¬ 
izenship, it is obviously incompetent for the canvassing 
board to go behind the returns and consider such proofs. 
The only tribunal which has power to do so in this case is 
the House of Representatives of the United States. 

The difference between the duties of the precinct election 
officers and those of the canvassers is very great. The pre¬ 
cinct election officers are judges of election. In the first 
instance it devolves upon them to judge of the qualifications 
of electors, in subordination to the provisions of law regu¬ 
lating their duties; but it never devolves upon any can¬ 
vasser to judge of the qualifications of electors unless by 
virtue of express—and, I will add, most extraordinary and 
dangerous — statutory provisions. Only in a few excep¬ 
tional cases have any such indefensible provisions been 
made by statute in the United States. 


11 


The House of Representatives is, by the Constitution, 
made the judge ot the election, returns, and qualitications of 
its members. This power of the House does not exclude the 
power ot the judges of election to act within their statutory 
authority as judges of the qualitications of electors; nor does 
it exclude the power of canvassers to act as judges of the re¬ 
turns presented to them to be canvassed, so far as to deter¬ 
mine whether they are or are not returns substantiallj" con¬ 
forming to the law. But it does exclude the power of 
precinct officers to judge of the qualifications of candidates; 
and it excludes the powei* of canvassers to judge either of 
the qualifications of electors, or of the qualifications of 
candidates. It also confers upon the House the power to 
decide on all points, including the qualifications of electors 
and the legal sufficiency of the precinct returns. 

I respectfully submit, therefore, that the Governor and 
Secretary have no power to go behind the returns to ascer¬ 
tain whether I am or am not an unnaturalized foreigner. 
This disposes of the point. 

But then the fact is that on the 7th day of December, 
1854, by a judgment of a court of competent jurisdiction, 
I was duly naturalized according to law, as Mr. Campbell 
well knows. 

In the case of Spratt v. Spratt, 4 Pet., 393, Chief Justice 
Marshall said: 

“The various acts upon the subject submit the decision 
of the right of aliens to admission as citizens to courts of 
record. They are to receive testimony, to compare it with 
the law, and to judge upon both law and fact. This judg¬ 
ment is entered on record as the judgment of the court. 
It seems to us, if it be in legal form, to close all inquiry, 
and, like every other judgment, to be complete evidence 
of its own validity.” 

In Campbell v. Gordon, 6 Cranch, 176, the Supreme 
Court of the United States held: 

“ It is true that this requisite [good moral character] to 
his admission is not stated in the certificate; but it is the 
opinion of this court that the court of Suffolk must have 


12 


been satisfied as to the character of the applicant, or other¬ 
wise a certificate that the oath prescribed by law had been 
taken would not have been c^ranted. The oath, when 
taken, confers upon him the rights of a citizen, and amounts 
to a judgment of the court of his admission to those rights. 
It is, therefore, the unanimous o|)inion of the court that 
William Currie was duly naturalized.” 

If, now, it were competent for the House itself, in a con¬ 
tested case, to reverse or vacate this judgment and to de¬ 
clare that I am an unnaturalized foreigner, it would not 
be competent for the Governor and Secretary, acting as 
canvassers, to do this. The notion that any jurisdiction to 
reverse or vacate that judgment for mistake or fraud, or on 
any other orrounds, is vested in the canvassin<^ officers in 
this case, is too pre[)osterous to admit of any comment 
from me. But in the case of Baskin v. Cannon, in the 
44th Congress, this precise objection to nn^ eligihilit}’ was 
urged before the Committee of Elections of the House, and 
was overruled by the unanimous vote of the committee, 
on the ground that the judgment of the First Jlistrict 
Court of Utah on this point was conclusive, and I retained 
my seat in the House. 

Not only is there no legal ground for a question of my 
eligibility by the territorial canvjissers, or even by the 
House of Representatives itself, based on the ground of 
alienage, hut though such ineligibility could be a lawful 
ground of action by the committee or the House, it would 
not, as Mr. Campbell supposes, be aggravated by polygamy, 
if that could also l)e added as a factor in the adjudication. 
For, in the case of Maxwell r. Cannon, in the Forty-third 
Congress, Smith’s Digest, 188, it was unanimously held 
by the committee, with the concurrence of the House, that 
the only qnalitications or disqualifications of delegates were 
those prescribed by the Constitution for Representatives, 
and that polygamy was not a disqualification for a seat in 
the House of Re[)resentatives of the United States. 

5. Mr. Campbell’s fifth proposition is, that my alleged 


13 


want of citi7.ensliip renders me ineligible to the office of 
delegate in Congress. I concede, for the sake of the argu¬ 
ment, that an imiuitaralized foreigner ought to be ineligible 
to the office of delegate from Utah, just as he is ineligible to 
the office of representative in Congress. I make this con¬ 
cession, not because I am certain that the proposition is 
founded in the Constitution or in the law, but because it seems 
to me to be founded in common sense. The Constitution 
provides neither for the qualifications of the office of delegate 
in Congress nor for the office itself. The law accords to every 
Territory tlie right to send a delegate to the House of Rep¬ 
resentatives of the United States. (Rev. Stats., sec. 1862.) 
It prescribes the qualification of citizenship for the dele¬ 
gates from Washington, Idaho, and Montana, (Rev. Stats., 
sec. 1906,) but for the delegates from no other Territory. 
Whether, in the face of the constitutional provisions that 
‘‘the House shall be composed of members chosen every 
second year by the people of the several States’^; (art. 7, 
sec. 2;) that “each House shall be the judge of the elec¬ 
tion, returns, and qualifications of its members”; (art. 7, 
sec. 5;) and that “ each House may determine the rules of 
its procedure,” (art. 7, sec. 5,) the law creating the office 
of delegate would or would not have any validity as against 
a rule of the House excluding from the floor all territorial 
delegates, or aiyy other persons not constitutional members 
or officers of the House, I admit, for the purposes of this 
argument, that so long as delegates .shall be received in con¬ 
formity with the provisions of the statute, it will be within 
the power of the House, and also its duty, practically to 
recognize and enforce this qualification of citizenship, 
whether prescribed by law or not. But it is an insult to 
the Governor and Secretary to suggest that they are capa¬ 
ble of such an unwarrantable invasion of the jurisdiction 
of the courts and of the House of Representatives as to at¬ 
tempt to incorporate as an element into their canvass in 
this case a decision adverse to my eligibility, based on a 


14 


reversal or vacation of the jadgment by which I was nat- 
uralized. 

6, 7. The next two propositions of Mr. Campbell may he 
conveniently considered together. He asserts that by reason 
of my alleged ineligibility all the 18,568 votes cast for me 
at the late election are void and are to be excluded from the 
canvass, and that, as a consequence, the certificate of elec¬ 
tion is to be given to him, and not to me. I will cite, with¬ 
out discussion, the authorities by which the doctrine in¬ 
volved in these propositions has been repudiated as often 
as it ha-^ appeared in the Senate or in the House. 

The case of Smith v. Brown, 2 Bart., 395, is the leading 
case in the House of Representatives. It was reported from 
the Committee on Elections by the chairmaii, Mr. Hawes, 
on the 28th of January, 1868. His exhaustive discussion 
of the subject appears on pages 402-405 of the second 
volume oF Bartlett’s Contested Election Cases. He refers 
to the case of Ramsey v. Smith, Clark & Hall, 23, argued by 
Mr. Madison in the House at the first session of the First 
Congress, and to the cases of Albert Gallatin in the Senate 
in 1793, Philip Barton Key in the House in 1807, John Bai¬ 
ley in the House in 1824, James Shields in the Senate in 
1849, and Tohii Young Brown in the House in 1859. He 
also reviews the English authorities, and the opinion ex¬ 
pressed in Cushing’s treatise, which is cited by Mr. Camp¬ 
bell, and he closes the discussion by declaring that “The 
law of the British Parliament in this particular has never 
been adopted in this country, and is wholly inapplicable 
to the system of government under whicli we live.” 

In the subsequent case of Zeigler v. Rice this precise 
question was decided as follows: 

“ Thus it will be seen that, according to the contestee’s 
own statement, he had entered into an agreement to recruit 
for the rebel army; was on his way to carry out fully his 
understanding when he was captured, and claimed protec¬ 
tion as a rebel officer when captured. The Committee are 
well satisfied that the acts of the contestee were well un- 


15 


derstoocl by the voters of said district at the time the con- 
testee was voted for, hot do not agree with contestant that, 
as contestee was ineligible, the candidate who was eligible 
is entitled to the seat.” (2 Bart., 884.) 

The committee accordingly recommended a resolution 
unseating Mr. Kice and declaring the seat vacant; hut the 
House refused even to evict Mr. Bice. On the contrary, 
by the adoption of a substitute for the committee’s resolu¬ 
tion, without a division, Mr. Rice was declared entitled to 
the seat. The proceedings may be found on page 5447, 
vol. 80, of the Congressional Globe. 

In the Fortieth Congress Simeon Corley of South Car¬ 
olina, Pierce M. B. Young and Yelson Tift of Georgia, 
and Roderick R. Butler of Tennessee, and in the Forty- 
first Congress Francis E. Shoher of North Carolina, mem¬ 
bers of the House, were relieved of their disabilities long 
after their election, and yet, when so relieved, were admit¬ 
ted to their seats in the House. All were ineligible when 
chosen, but in neither case was the seat given to a compet¬ 
itor, nor the election even declared void. 

In the case of Joseph C. Abbott, in the Senate (Forty- 
second Congress), the doctrine now asserted by Mr. Camp¬ 
bell was fully considered, and was repudiated by the Senate. 
There has not been and probably will not be in this country 
another discussion of the subject so exhaustive as that 
which was had in this case. The English authorities were 
all presented, and very few, if any, American decisions, 
whether judicial or parliamentary, escaped the scrutiny of 
the Senators who submitted the report of the committee 
and the views of the minority, which are printed together 
in Senate Report No. 58, Forty-second Congress, second 
session. 

In the case of Maxwell v. Cannon, decided in the Forty- 
third Congress, the same question was raised, and the Com¬ 
mittee and House, without a division, rejected the doctrine 
now asserted by Mr. Campbell. 


16 


8. Ill reph" to Mr. Canipbell’s assertion that the females 
in the Territory who claimed the right to vote outnum¬ 
bered all the votes polled at the late election, I respectfully 
submit, in the first place, that this alleged fact probably does 
not appear on the face of the returns; and, in the next place, 
that if it be a fact capable of substantiation by extraneous 
proofs, and at the same time entitled to weight in any as¬ 
pect of this case, the only tribunal invested with power to 
ascertain the fact and use it as a basis of judicial action is 
the House of Representatives of the United States. 

9. Mr. Campbell asserts that it ‘‘ must he taken for 
granted” that all votes cast by females were casi for me. 
On this point also Mr. Campbell is mistaken. If this is not 
shown by the returns, the canvassers can neither presume 
it nor permit Mr. Campbell to attempt to prove it before 
them l\v extrinsic evidence, nor can they consider the fact 
when so proven. If he shall contest ni}" seat in the next 
Congress, and shall deem the mode in which the females 
voted material to any issue in the contest, he will learn that 
the House will not presume what he asserts on this point 
to be true, but will compel him to prove it. 

10. Mr. Campbell asserts that the territorial legislation 
which extends the right of suffrage to females is void be¬ 
cause “it attempts to confer the privilege by a special act 
on different and easier terms of qualification than those 
required b}’ existing general laws applicable to the other 
sex, thus violating the rule of uniformity.” If this asser¬ 
tion be true, it can have no bearing upon the action of the 
canvassers, who have no power to look be^’ond the returns 
for the purpose of ascertaining whether females voted, how 
many voted, or for whom they voted, but only upon the 
action of the House of Representatives in a contest or under 
a protest before that tribunal. It is not a necessity of my 
case, therefore, that I shall vindicate the “ act conferring 
upon women the elective franchise,” approved February 
12, 1870. 


17 


11. The next proposition of Mr. Campbell is, that it is, 
in \ie\v ol the premises, impossible to determine, without 
pi oof, that the 18,568 votes cast for me included more 
legal votes than the 1,357 votes cast for him. This in¬ 
volves a singular misconception of the effect of these 
returns and ot the relation sustained to them by the Gov- 
ei’iior and Secretary as canvassing officers. Mr. Campbell 
asserts the presumption to be that the votes returned for 
me were illegal votes, and that they are not to be can¬ 
vassed for me in the absence of affirmative proof dehors 
the returns showing that they were in fact legal votes. 
The absurdity ot this assertion is not even mitigated by a 
concession that the same presumption arises as to votes 
cast tor him. The rule does not, in his judgment, “ work 
both ways.” The truth, however, on this point is very 
manifest. The presumption is that all votes shown by 
returns, legal in form, to have been cast for him or for me 
were so cast, and were lawfully cast. This presumption is 
not conclusive on the House in a contest duly prosecuted. 
It may be overcome by extrinsic proof. But it is con¬ 
clusive on the canvassing officers, and cannot before them 
be overcome by proofs outside of the returns if the returns 
are regular and legal. 

12. Mr. Campbell’s last point is that the votes of the 
women have vitiated the election by rendering it impos¬ 
sible to deteriTiine without proof that the pretended ma¬ 
jority for Mr. Campbell does not consist of such votes.” 
This is a most remarkable view of the law to be entertained 
by an aspirant to a seat in Congress. No board of canvass¬ 
ers can ever be absolutely certain that the majority of any 
candidate does not consist of illegal votes, without extrinsic 
pi'oof which is not merely presumptive but absolutely con¬ 
clusive. Jiuf' the i?l)sence of such conclusive proof does 

^imt nelecUbvoj^J. It is an impossibility that any 
county retinwshould furnish conclusive proof of the legal¬ 
ity of any 'V^s. The prbof which these returns afford is 


$ 



18 


not conclusive but presumptive. Upon this presumptive 
proof the canvassers must act. They can resort to no otlier. 
It is for them conclusive. They must award the credentials 
to the candidate shown by the returns to have been elected. 
In the House the case is ditferent. The House may in a 
case of contest or of protest inquire into and pass upon 
the title to the seat; but even in the House the credentials 
will be presumptive evidence of title, and will be decisive 
of the case unless overcome by counter proof The House 
itself will not in the absence of a contest require concliLsive 
proof And in a contested case a preponderance of proof 
will be decisive whether the proof be or be not conclusive. 

If the House in a contested case sliall find that of my 
18,568 votes 17,212 were illegal, whether c^st by women 
or by men, and that of Mr. Campbell’s 1,357 none were 
illegal, the election will not be rendered void, but the 
seat will be awarded to Mr. Campbell. But if the 
House shall not find that so many illegal votes were 
cast for me, it will confirm ray title to the seat, what¬ 
ever assertions Mr. Campbell may see fit to make in 
impeachment of that title. Of the question presented in 
this branch of Mr. Campbell’s protest, tbe Governor and 
Secretary, as canvassers, obviously have no shadow of juris¬ 
diction. 

Having answered all the propositions upon which Mr. 
Campbell bases his protest against an award of the certifi¬ 
cate of election to me, and his demand of an award of the 
certificate of election to himself, I respectfully submit that 
a returned majority of 17,211 votes, in a total vote of 
19,925, gives me a title to the credentials which cannot be 
overridden by the Governor under any of the pretexts sug¬ 
gested by Mr. Campbell, withe 
law and of official duty. 


Washington, H. C., Decembe 



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